[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1208.11]

[Page 82]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1208_PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED SERVICES 
 
                        Subpart B_USERRA Appeals
 
Sec.  1208.11  Choice of procedure under USERRA; exhaustion requirement.


    (a) Choice of procedure. An appellant may file a USERRA appeal 
directly with the Board under this subpart or may file a complaint with 
the Secretary of Labor under 38 U.S.C. 4322.
    (b) Exhaustion requirement. If an appellant files a complaint with 
the Secretary of Labor under 38 U.S.C. 4322, the appellant may not file 
a USERRA appeal with the Board until the Secretary notifies the 
appellant in accordance with 38 U.S.C. 4322(e) that the Secretary's 
efforts have not resolved the complaint. An appellant who seeks 
assistance from the Secretary of Labor under 38 U.S.C. 4321 but does not 
file a complaint with the Secretary under 38 U.S.C. 4322 is not subject 
to the exhaustion requirement of this paragraph.
    (c) Appeals after exhaustion of Department of Labor procedure. When 
an appellant receives notice from the Secretary of Labor in accordance 
with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved 
the complaint, the appellant may file a USERRA appeal directly with the 
Board or may ask the Secretary to refer the complaint to the Special 
Counsel. If the Special Counsel agrees to represent the appellant, the 
Special Counsel may file a USERRA appeal directly with the Board. If the 
Special Counsel does not agree to represent the appellant, the appellant 
may file a USERRA appeal directly with the Board.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]